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    Wisconsin Lawyer
    May 01, 2016

    Handle Privileged Lawyer-client Information with Kid Gloves

    Lawyers must be very cautious to avoid violating ethics and evidence rules when they accidentally see an opposing party’s communications with counsel.

    Dean R. Dietrich


    A client who is seeking a divorce recently brought me documents obtained from her home computer, which she shares with her husband. These documents include communications from her husband to his lawyer. Can I use those documents in representing the client?


    This is a very complex question that does not have an easy answer. Much will depend on how your client obtained these documents and if she got them from a shared email account or by inappropriately accessing her husband’s emails. In either case, however, an argument can be made that any communications between the husband and his attorney are privileged and should not be used as part of the representation of your client.

    Dean R. DietrichDean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    This is often more of an evidentiary matter than an ethics matter. The documents you are referring to were not “inadvertently sent” by the opposing attorney; if they were, they would be subject to the ethical duties under SCR 20:4.4.

    Under current Rule 20:4.4, an inadvertently sent email from an opposing party is subject to the requirement that the lawyer notify the opposing counsel of the receipt of the document. There are no additional ethical requirements under the Supreme Court Rule; however, the comment to the Supreme Court Rule suggests that the lawyer must exercise professional judgment as to whether the lawyer will read the document and use the information contained in the document as part of the representation. The lawyer is always potentially subject to a motion to be disqualified because of the receipt and use of attorney-client protected information.

    The Wisconsin Supreme Court is currently considering a modification to Supreme Court Rule 20:4.4, which would require the lawyer to 1) notify the opposing attorney that an apparent confidential document has been received by the attorney, 2) not read the document beyond what is necessary to determine that the document was not an appropriate communication from opposing counsel, and then 3) follow the directives of opposing counsel as to how to handle the return or disposal of the confidential document.

    Inadvertently sent email containing confidential information from an opposing party is subject to the requirement that the lawyer notify the opposing counsel of the receipt of the document.

    These requirements were identified in a prior ABA Opinion and constitute the best practice for someone who receives an inappropriately sent communication from opposing counsel. This practice would also be the best way to avoid the lawyer being considered for disqualification because of inappropriate receipt and review of an attorney-client protected communication.

    The use of information obtained from a client that includes communications between a lawyer and an opposing party is fraught with potential problems for the attorney. Very careful consideration should be given on how to handle the review and possible use of those types of documents.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce or assistant ethics counsel, Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

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